CHAPTER 5 FRAMING THE FUNCTIONING OF COMMUNITY COURTS IN MAPUTO THROUGH
5.4 T HE FUNCTIONING OF COMMUNITY COURTS IN M APUTO
5.4.3 Places where community courts function and their politicisation
Focus group discussions found that ten of the 21 community courts visited in 2015 used an office in the same premises as the secretary of the neighbourhood (secretário do bairro). The secretary of the neighbourhood is a local political agent who was originally tasked by FRELIMO with resolving everyday disputes in the area and also for the communities’ social control.493 Although highly criticised in the scholarly literature494 for being the representative of FRELIMO (and as such promoting the party’s agenda rather than good governance and democracy per se), the secretary of the neighbourhood is highly used by residents, particularly
489 In 2015, Maputo was divided into seven Districts and 64 neighbourhoods (bairros). Each neighbourhood was subdivided into blocks (quarteirões). In April 2021, there were 42 community courts of which 35 were functioning in the city of Maputo.
490 Centro de Pesquisa e Apoio à Justiça Informal (2013).
491 Information available at: https://bit.ly/33XegVr (accessed 3 December 2021).
492 Ordem dos Advogados de Moçambique (2019).
493 Forquilha, S. C. (2008) ‘O Paradoxo da Articulação dos Órgãos Locais do Estado com as Autoridades Comunitárias em Moçambique: Do discurso sobre a descentralização à conquista dos espaços políticos a nível local’, Cadernos de Estudos Africanos, 16/17, pp. 89-114. Gentili, A. M.
(2004) ‘Democracy and citizenship in Mozambique’, in Triulzi A., Ercolessi C. State, power, and new political actors in postcolonial Africa, Fondazione Giangiacomo Feltrini, Milano. pp. 153-174.
494 Ibid.
86 for property and administrative issues.495 Two community courts operated outside the secretary’s premises, under a tree or on benches outside the office, while one community court shared the same office as the secretary.
The physical proximity of community courts to the secretaries works in favour of the courts.
Residents who approach the secretaries for help become aware of the courts and what they can do, though the fact that they are so physically close to spaces linked to political entities has raised concern over the politicisation of the community courts. There is, however, no evidence that shows that the fact of shared spaces has impacted on the impartiality of community courts in Maputo, particularly considering that the municipality has always been in the hands of FRELIMO and that no local representatives from other parties have operated in the city.496 Nonetheless, scholarly literature on community courts in Mozambique has regularly expressed concern about the use of political spaces by the courts.497 In 2003, Gomes said that ‘sharing facilities with other structures ... can hinder functional autonomy and its assertion as independent structures’.498
Yet, the question of the politicisation of justice needs to be analysed more broadly beyond the issue of community courts. For instance, state judges in the country are regularly accused of partisanship and of lacking proper independence.499 Judicial independence refers to judicial decisions that are free, fair and impartial, and that rely only on the facts and the law.500 Research, however, has revealed the closeness of the judicial judges to the FRELIMO party.501 A 2006 study pointed out how, in district courts in particular (where these are often faced with a shortage of funds and a lack of physical infrastructure), judges may be more vulnerable to external influence, including possible corruption.502 On the other hand, one community court judge noted:
The risk of corruption of community court judges is very low or non- existent, considering the social control that communities have on the courts.
495 Ginisty, K. and Vivet, J. (2012) ‘Frelimo Territoriality in Town: the Example of Maputo’, L’Espace Politique, 18. Available at: http://journals.openedition.org/espacepolitique/3164 (accessed 11 March 2021).
496 According to the most recent information, in April 2021 five courts were operating on the premises of FRELIMO: the courts of Inhagoia A, Inhagoia B, Costa do Sol, Unidade 7 e Kampfumo central district.
497 De Sousa Santos, B. e Trindade, J. C. (eds). (2003).
498 Gomes, C., Fumo, J., Mbilana, G. e De Sousa Santos, B. (2003) ‘Os tribunais comunitários’, in De Sousa Santos, B. e Trindade, J. C. (eds). (2003), 2, p. 331.
499 See 2012 data overview of corruption and anti-corruption in Mozambique from U4 Expert Answer.
Available at: https://bit.ly/3recpnX (accessed 9 November 2020). See also info available at:
https://www.business-anti-corruption.com/country-profiles/mozambique/ (accessed 9 November 2020) and 2016 Country Findings – Mozambique from Africa Integrity Indicators. Available at:
https://www.globalintegrity.org/wp-content/uploads/2016/06/ AII4-Findings-Mozambique.pdf (accessed 9 November 2020).
500 See definition available at: http://www.unodc.org/unodc/en/corruption/new/judicial-integrity.html (accessed 12 November 2018).
501 REFORMAR-Research for Mozambique. (2019) An Assessment of some Aspects of Judicial Integrity in Mozambique. REFORMAR-Research for Mozambique. Available at:
https://bit.ly/3G9HDAF (accessed 1 January 2020).
502 AfriMAP (2006) Mozambique: Justice Sector and the Rule of Law. Open Society Foundations.
Available at: https://acjr.org.za/resource-centre/Mozambique%20Justice%20report%20-Eng.pdf/view (accessed 10 December 2020).
87 Judges are well regarded and communities around the courts are very aware
of all that is happening in the area, the behavior and the decisions of the judges. In addition, knowing that cases in general don’t stop at the community level but often continue to other levels, such as judicial courts, judges refrain from corruption.503
There is no specific research on the corruption of community court judges. However, some postcolonial theorists argued that African corruption is actually ‘a Western invention that emerged as a postcolonial construct that has distorted and ignored the true nature of the problem’.504 In a recent article published in 2019, Apata concludes:
If one were to probe deep into the idea of corruption in Africa one might find that corruption is probably not the biggest challenge to African development as many have claimed. Indeed a closer inspection of the subject – that is, if one can get through the confusion and the moral panic that the discourse engenders – might reveal corruption to be but a consequence of deeper problems.505
An in-depth analysis should be made of corruption in the country using the lenses provided by postcolonial studies. If the use of political representatives’ spaces from community courts is a fact, the politicisation of the courts will fade away only once the full democratisation of all sectors of the country is complete. Forquilha, in fact, reminds us that democracy is yet to be completed as the Mozambican reality is that of a private appropriation of the state by the FRELIMO ruling party.506
Focus group discussions also showed that the premises in which the community courts operate are mostly old, hot, and badly maintained. With the walls cracked and leaking, there is often no electricity and little natural light coming through the windows. Judges in the community courts often had to borrow tables and chairs from the secretaries. There were often no shelves available for the storage of documentation, with many of the files left lying about on the floor and/or on tables. All in all, the working conditions in which community court judges operate are deplorable and may affect the daily performance of the judges. Conditions should be improved by at least providing courts with furniture and working materials such as paper and pens. These appalling working conditions are also shared by many judicial courts at the district level.
Research reveals that
[i]n addition to the lack of magistrates and officials, a part of the courts (mainly district) works in very precarious conditions, being installed in degraded or inadequate buildings for the preservation of the processes (and
503 Interviewee 012(A).
504 Apata, G.O. (2019) ‘Corruption and the postcolonial state: how the west invented African corruption’, Journal of Contemporary African Studies, 37(1), p. 43.
505 Ibid. p. 56.
506 Forquilha, S. C. (2009) ‘Reformas de Descentralização e Redução da Pobreza num Contexto de Estado Neo-patrimonial. Um olhar a partir dos Conselhos Locais e OIIL em Moçambique’, II Conferência do IESE, “Dinâmicas da Pobreza e Padrões de Acumulação em Moçambique”. Available at: https://www.iese.ac.mz/~ieseacmz/lib/publication/II_conf/CP25_2009_Forquilha.pdf (accessed 9 August 2021).
88 even for the health of the professionals who work in them) and which even
do not have electricity, running water, equipment or sufficient furniture.507
Analysis of the community courts’ workplaces will be enriched by an assessment of the profile of the judges and how they came to be appointed as judges.